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WA Competing Business using Same Business Name?

Discussion in 'Commercial Law Forum' started by Stephen Poole, 23 March 2015.

  1. Stephen Poole

    Stephen Poole Member

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    I own a driving school in Western Australia that has a registered business name through ASIC since 1986. Now another driving school has just started up using my business name here in Western Australia. Is there anything I can do about this under commercial law?
    Regards
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi Stephen,

    ASIC only registers one business under the business name in the same geography. Have you registered your business name with ASIC? If so, is it exactly the same as the one registered by the second business? (check business name registration.) Was your business name suspended at a particular time and you have not notified ASIC of continuation of that business registration?

    If this second business is allowed to register the same business name as your business, and your business was already registered under that name, then you can dispute ASIC's decision to approve the second registration by lodging a complaint here: "request review of ASIC business name decision"
     
  3. Sarah J

    Sarah J Well-Known Member

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    Alternatively, if the other business is attempting to be you (or attempting to represent you), then you may have a case in fraud or misrepresentation against the persons behind the business. You should apply to court for an injunction first (both interim and final injunction) to prevent those persons from using your business name in relation to their business activities.

    Have you trademarked your business name? If so, you will have an action for IP infringement as well.
     
  4. Stephen Poole

    Stephen Poole Member

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    I have my business registered with Asic with 2 different spellings and the other business is using one of those that I have registered but I don't have a trade mark to those names. ASIC has told me that if they are operating under that name they are operating illegally unless they come from the eastern states and had the name registered there. No my business name has never been suspended.
     
  5. Sophea

    Sophea Well-Known Member

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    You may also have grounds to make them stop using under the tort of "passing off". This is where another person represents that their goods or services are yours or related to yours. You would need to prove that the person was misrepresenting in the course of trade to prospective customers or consumers and is intending to injure your business or goodwill. You may also need to prove that it has caused your business damage.

    Alternatively there is the statutory prohibition on misleading and deceptive conduct in trade and commerce which is contained in the Competition and Consumer Act.
     
    Sarah J likes this.
  6. Sarah J

    Sarah J Well-Known Member

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    Hi Stephen,

    I agree with Sophea.

    (1) To establish the tort of passing off, you will need to establish:
    • misrepresentation
    • made by the trader in the course of trade
    • to prospective customers
    • calculated to (reasonably foreseeably) injure your business or goodwill
    • causing actual damage to your business or goodwill
    This a general law action (i.e. not in statute), which means the law establishes according to judges' comments in previous cases. The leading case which identified these elements is the Advocaate Case.

    (2) As Sophea said, you may have an action under misrepresentation and deceptive conduct:

    "18 Misleading or deceptive conduct
    (1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
    (2) Nothing in Part 3‑1 (which is about unfair practices) limits by implication subsection (1).
    Note: For rules relating to representations as to the country of origin of goods, see Part 5‑3.

    This section is part of Australian Consumer Law (schedule 2 to the Competition and Consumer Act (Volume 3 Chapter 2)). ​
     
  7. Stephen Poole

    Stephen Poole Member

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    Thank you all for your help in this matter. As yet I have not been able to find out who they are, but have been reliably informed by other instructors about them operating. Have tried googleing them but only my school shows up. Will let you know if I find out more.
     

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